Delhi High Court
Radhey Shyam vs Soni & Anr. on 24 August, 2017
$~R-141
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 24th August, 2017
+ MAC APPEAL NO.603/2009 & CM Nos.17861/2009 and
17862/2009
RADHEY SHYAM ..... Appellant
Through: Mr. Pravin Sharma, Advocate
versus
SONI & ANR. ..... Respondents
Through: Mr. Jatinder Kamra, Advocate
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. It is the admitted case of both sides that the appellant is the
registered owner of the motor cycle bearing registration no.DL-4S-
AY-5372 (motor cycle). On 23.03.2007, Raghuvir @ Raghuvir
Singh was driving the said motor cycle on Rohtak Road near bus
stand Mundka proceeding in the direction of Nangloi, Delhi. It has
been the case of the claimants (respondents) in appeal that he had
borrowed the said motor cycle from its registered owner i.e. the
appellant. Though, in his contest to the claim petition, the appellant
had taken the position that the deceased had taken the motor cycle
from a co-worker at the workshop for a ride without his knowledge,
consent or permission, the facts may be assumed to the contrary
accepting the averments of the claimant to above effect.
2. Be that as it may, Raghuvir Singh was found dead, with motor
cycle lying nearby, at about 7.42 p.m on 23.03.2007, this having been
reported to police station Nangloi which initially logged DD no.81B
and later converted into FIR no.261/2007. The post mortem
examination of the dead body confirmed that he had died on account
of ante mortem injuries which were likely to have been caused in a
roadside accident. The investigation unfortunately could not bring
out with any clarity the sequence of events leading to the death. The
involvement of another motor vehicle could not be established as no
eye witness could be found, the police eventually treating it as a case
of "hit and run".
3. The respondents instituted accident claim case (petition
no.34/09, original no.227/07) seeking compensation invoking the
principle of no fault liability under the structured formula in terms of
Section 163A of the Motor Vehicles Act, 1988 impleading the
appellant as the sole respondent, the motor cycle not being insured
against third party risk for the period in question. The claim case was
contested by the appellant through written statement denying any
liability raising the defence mentioned above. The matter was put to
inquiry by issues framed on 04.07.2008. Mid-way the inquiry, the
appellant was set ex parte. On the conclusion, the tribunal upheld the
claim for compensation under Section 163A of the Motor Vehicles
Act 1988 and, by judgment dated 03.07.2009, awarded compensation
calculated in the sum of Rs.5,24,600/- fastening the liability on the
appellant. It may be added that the claim was accepted as
maintainable under Section 163A of the Motor Vehicles Act by the
tribunal on the basis of the facts that the evidence had proved that the
death had occurred in an accident involving use of the motor cycle
the appellant being the owner of the said vehicle.
4. By the appeal at hand, the appellant questions the above
mentioned judgment of the tribunal stating that the deceased, having
borrowed the vehicle from him, had stepped into the shoes of the
owner and therefore, the claim could not have been maintained.
5. Section 163A of the Motor Vehicles Act is a special provision
for compensation on structured formula basis wherein the issues of
wrongful act or neglect or default are irrelevant. The provision reads
as under :-
"163A. Special provisions as to payment of compensation
on structured formula basis-
(1) Notwithstanding anything contained in this Act or in
any other law for time being in force or instrument having
the force of law, the owner of the motor vehicle or the
authorised insurer shall be liable to pay in the case of death
or permanent disablement due to accident arising out of the
use of motor vehicle, compensation, as indicated in the
Second Schedule, to the legal heirs or the victim, as the
case may be.
Explanation-For the purposes of this sub-section,
"permanent disability" shall have the same meaning and
extent as in the Workmen's Compensation Act, 1923 (8 of
1923).
(2) In any claim for compensation under sub-section (1),
the claimant shall not be required to plead or establish that
the death or permanent disablement in respect of which the
claim has been made was due to any wrongful act or
neglect or default of the owner of the vehicle or vehicles
concerned or of any other person.
(3) The Central Government may, keeping in view the cost
of living by notification in the Official Gazette, from time to
time amend the Second Schedule."
6. The judgment of the Supreme Court in Ningamma and Anr. Vs.
United India Insurance Co., 2009 (13) SCC 710, following the
previous ruling in Oriental Insurance Co Ltd. Vs. Rajni Devi, 2008 (5)
SCC 736 which had similar fact situation is a complete answer to the
issue that is brought before this court. The observations of the
Supreme Court (in paras 18 and 19 of) Ningamma (supra) need to be
extracted as under :-
"18. In the case of Oriental Insurance Company Ltd. v.
Rajni Devi and Others, (2008) 5 SCC 736, wherein one of
us, namely, Hon'ble Justice S.B. Sinha is a party, it has
been categorically held that in a case where third party is
involved, the liability of the insurance company would be
unlimited. It was also held in the said decision that where,
however, compensation is claimed for the death of the
owner or another passenger of the vehicle, the contract of
insurance being governed by the contract qua contract,
the claim of the claimant against the insurance company
would depend upon the terms thereof. It was held in the
said decision that Section 163-A of the MVA cannot be
said to have any application in respect of an accident
wherein the owner of the motor vehicle himself is
involved. The decision further held that the question is no
longer res integra. The liability under section 163-A of the
MVA is on the owner of the vehicle. So a person cannot be
both, a claimant as also a recipient, with respect to claim.
Therefore, the heirs of the deceased could not have
maintained a claim in terms of Section 163-A of the MVA.
In our considered opinion, the ratio of the aforesaid
decision is clearly applicable to the facts of the present
case. In the present case, the deceased was not the owner
of the motorbike in question. He borrowed the said
motorbike from its real owner. The deceased cannot be
held to be employee of the owner of the motorbike
although he was authorised to drive the said vehicle by its
owner, and therefore, he would step into the shoes of the
owner of the motorbike.
19. We have already extracted Section 163-A of the MVA
hereinbefore. A bare perusal of the said provision would
make it explicitly clear that persons like the deceased in
the present case would step into the shoes of the owner of
the vehicle. In a case wherein the victim died or where he
was permanently disabled due to an accident arising out
of the aforesaid motor vehicle in that event the liability to
make payment of the compensation is on the insurance
company or the owner, as the case may be as provided
under Section 163-A. But if it is proved that the driver is
the owner of the motor vehicle, in that case the owner
could not himself be a recipient of compensation as the
liability to pay the same is on him. This proposition is
absolutely clear on a reading of Section 163-A of the
MVA. Accordingly, the legal representatives of the
deceased who have stepped into the shoes of the owner of
the motor vehicle could not have claimed compensation
under Section 163-A of the MVA."
(emphasis supplied)
7. The deceased having stepped into the shoes of the registered
owner, his legal heirs cannot maintain such a claim under Section
163A of the Motor Vehicles Act.
8. The impugned judgment is set aside. The petition in so far as it
claimed compensation against the appellant stands dismissed.
9. The statutory amount shall be refunded.
10. The appeal and the pending applications are disposed of in
above terms.
2.
R.K.GAUBA, J.
AUGUST 24, 2017
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